The law can never be oblivious to the changes in life, circumstance and community standards in which it functions.
The International Court of Justice (ICJ, the Court) is the principal judicial organ of the United Nations.Footnote 2 Based in The Hague, its subject matter jurisdiction extends across all areas of international law. The ICJ was modelled on its predecessor, the Permanent Court of International Justice (PCIJ), which was the first international judicial body empowered to settle legal disputes between states during the era of the League of Nations.Footnote 3 With a temporal advantage over the more recent judicial constructions as the ‘only survivor of the League’s institutional framework’,Footnote 4 it was therefore the archetype for all judicial bodies that came after it in the twentieth century. Because of this, not only is the ICJ the primus inter pares in the system of international judicial fora, but it is the stronghold of state sovereignty, most prominent during the era of its predecessor. This is indicated by its personal jurisdiction (‘ratione personae’): it only accepts disputes between states.Footnote 5
The Court’s personal jurisdiction is a key feature that has become one of the cornerstones of its identity. However, it has led to misconceptions about its judicial function. Many would purport that, as the ICJ deals with disputes between states, individuals are irrelevant in such cases and have no reason to be considered in its decisions or involved procedurally.
This book challenges such an assertion. Academic literature has successfully documented and commented on the Court’s jurisprudence in contentious disputes whose essence is the violation of international human rights treaties.Footnote 6 Such analyses offer understandings of how the Court has handled human rights issues in its case law, such as genocide, racial discrimination, or reparations for human rights violations.Footnote 7 Yet the focus of this book lies elsewhere.
This book takes a twofold interest in the relationship between the World Court and the individual. First, it takes an interest in comprehensively exploring the individual’s procedural participation in contentious and advisory proceedings before the Court where such individuals are in focus. Such is the case for injured individuals in diplomatic proceedings, United Nations (UN) staff members wronged by their employers, or a community whose fate, health, or well-being is under discussion.
Second, it takes an interest in analysing the consideration for individuals in the Court’s legal reasoning in contentious disputes beyond the violation of multilateral human rights treaties where they are nonetheless impacted. In territorial boundary disputes, for instance, individuals may have to change their nationality, their identity, their home, lose family ties, or lose property as a result of a decision to alter a boundary or to attribute a piece of land to another state. Similarly, in maritime delimitation disputes, individuals may lose access to waters and fishing rights that are necessary for their livelihood, as the result of the alteration of a maritime boundary. In environmental disputes, individuals may have to suffer the consequences of environmental degradation in their surroundings without having been sufficiently consulted when the damaging government conducted environmental impact assessments. In other contexts, individuals may be affected due to the ruling of a certain practice as custom – they may be denied or granted rights to navigate a certain river for tourism or financial purposes. They may also be affected by the conferral or non-conferral of certain direct rights in international treaties – such as having the right to consular assistance. In such disputes, certain human dimensions may potentially be overlooked as they are not the principal focus of the dispute.
The objective of this study is therefore to assess the degree to which individuals are integrated in the procedural law of the Court, on the one hand, and considered in decisions of the Court, on the other hand. On the basis of these findings, the study also aims to analyse the reasons for state litigants’ and the Court’s choices. It argues that individuals impacted by the repercussions of inter-state disputes dealt with by the Court should and can be further integrated into its procedure and considered in its legal reasoning.
I.1 The ‘Why’
Some of the most authoritative chroniclers on the World Court – such as Hersch Lauterpacht, Shabtai Rosenne, and Rosalyn Higgins – have expressed concern that its law and practice is not adapted enough to modern-day realities regarding individuals in the international legal order.Footnote 8 Members of the Court have expressed similar concerns regarding the limited involvement of, or consideration for, individuals in certain instances.Footnote 9
The arguments of this book are underpinned by social idealism, a unique theoretical lens developed by Professor Philip Allott that calls for a change in the world’s social organisation.Footnote 10 Social idealism retains faith in state sovereignty and in the inter-state system – yet disagrees with Vattelian positivism, which created the foundations of ‘international unsociety’: a world tailored exclusively to the interests of states as opposed to humanity.Footnote 11 Rather, it invites a shift of focus from an international community dominated by states and their interests to one centred ‘on the claims, aspirations, and expectations of individual human beings, whose goals and values should matter more than the interests of states’.Footnote 12
Social idealism therefore considers that the international community, while still organised on the basis of states, should ‘discharge its community functions increasingly through international and regional institutions, and conferring rights and obligations on individuals’.Footnote 13 This is because individuals are not perceived as ‘subjects of international law in the traditional positivist sense, but rather as members of an international society in which they are the subjects of all law’.Footnote 14 This reconceptualisation reflects an international society of all-humanity,Footnote 15 which prioritises the unity of mankind.Footnote 16
Adopting the perspective of social idealism, I argue that the Court is compromising its effectiveness and legitimacy due to its reluctant approach towards including and considering relevant individuals in proceedings and disputes, respectively.
I.1.1 Effectiveness
The first reason to strengthen the relationship between the individual and the Court is to enhance the effectiveness of the Court. The assessment of effectiveness is the measurement of the degree to which a court accomplishes its specific objective aim.Footnote 17 Several aims can be advanced, which may lead to different conclusions about its effectiveness.Footnote 18 Beyond the aim to encourage the respect for international law, three aims are identified and discussed here:
First, the Court aims to peacefully resolve inter-state disputes. This is inferred by the UN Charter’s aim to, inter alia, settle international disputes ‘which might lead to a breach of the peace’.Footnote 19 However, it is submitted here that the dispute must be resolved in a way that ensures peace not only between states but also with respect to their populations. For instance, the Court’s judgment rendered in 2002 ordering a transfer of sovereignty of the Bakassi peninsula from Nigeria to Cameroon may have curbed inter-state conflict but had nonetheless resulted in physical and structural violence on the ground.Footnote 20 Peace, in the words of one author, is ‘a process or an institution that is not alien to the environment it is serving’.Footnote 21 It stems beyond the physical security that a boundary offers and encompasses human security, namely, ‘respect for the fundamental human rights of the persons concerned and their protection, including by international justice’, as Judge Bennouna has aptly stated.Footnote 22 The Court’s effectiveness therefore hinges on its ability to adopt an all-encompassing approach to resolving disputes to ensure lasting peace.
A second aim of the Court is to contribute to the operation of the UN thereby supporting this regime.Footnote 23 Given its status as the principal judicial organ of the UN, the Court’s goals have a ‘high degree of proximity’ to those of the UN.Footnote 24 These broadly include maintaining international peace and security – which, as explained before, should be interpreted to include human security – and encouraging respect for human rights. The Charter’s preamble also indicates that individuals are at the forefront of the UN’s mandate. Its opening sentence reads, ‘We The Peoples of the United Nations’,Footnote 25 referring to the populations of the UN Member States.Footnote 26 This reference is what divides the preamble into two parts. Only the second part refers to governments to address the Charter’s contractual element.Footnote 27 The first part, however, declares that people – as opposed to governments – have established the Charter’s object and purpose.Footnote 28 This interpretation of the UN’s objectives should therefore be reflected in the Court’s own mandate. Its ability to meet this aim, and therefore ensure its own effectiveness, hinges on its ability to adopt the UN’s own preoccupation with people as reflected in its Charter’s preamble.
The Court most clearly fulfils its aim of supporting the UN regime through its advisory function.Footnote 29 Advisory opinions have been recognised as means to respond to community interestsFootnote 30 in the socially ideal sense: they have presented opportunities for the Court to respond to questions not only of interest to a collective of states but to a wider public of individuals.Footnote 31 Examples include the series of questions relating to the self-determination of specific populationsFootnote 32 or the abstract legal questions about the well-being of individuals.Footnote 33 The Court’s advisory function, through which it offers support to the UN regime, has indicated the degree to which its mandate serves and impacts individuals. In this sense, meeting this aim to ensure its effectiveness hinges on this consciousness.
A third aim of the Court is, more broadly, to confer legitimacy to the UN regime by positioning itself as a custodian of international law and justice.Footnote 34 This legitimacy does not stem from the sole fact of being a judicial body. Rather, the Court must be perceived as legitimate, in order to confer legitimacy to the UN.Footnote 35 I argue here that the Court’s reticent approach to individuals may compromise its legitimacy.
I.1.2 Legitimacy
Legitimacy may broadly be understood as a ‘right to rule’Footnote 36 or an ‘authority (…) perceived as justified’.Footnote 37 This can be based on many competing standards, such as justice, fairness, democracy, or technocratic expertise.Footnote 38 Assessing both the process and the outcome of a decision of the Court against these standards, this book illustrates how the Court’s legitimacy may be compromised.
The process at the Court is legitimate insofar as it has been generated ‘by way of a proper legal procedure’.Footnote 39 This is typically assessed by standards of fairness: whether the Court has met standards of procedural justice, such as the principle of the equality of parties. In contexts such as advisory proceedings reviewing decisions of certain administrative tribunals, this book demonstrates how the Court’s legitimacy is compromised through its struggle to uphold this principle.Footnote 40 Procedural legitimacy can also be assessed by standards of democracy, concerned with giving voice to as many constituencies of international courts as possible.Footnote 41 Inter-state courts and tribunals have been observed to include non-state actors in their procedure to uphold democratic standards and therefore preserve their legitimacy.Footnote 42 The chapters in Part I demonstrate that the absence of individuals in proceedings where they are directly impacted may have repercussions on the Court’s legitimacy in this sense. Finally, the Court’s process can also be flawed when technocratic expertise is measured. This is derived from the judges’ competence, knowledge, skills and reputation. When the judicial process does not incorporate the necessary procedural tools at disposal to incorporate individuals, such as oral witness testimony, this might impact the judges’ ability to reach well-informed decisions. Indeed, enhanced participation may allow for more evidence that could facilitate the successful resolution of the dispute. Chapter 2 (in Part I) demonstrates instances in which greater participation of individuals may have led to more evidence being provided and therefore more satisfactory outcomes for the Court.Footnote 43 Such situations suggest that inadequate procedural tools might ultimately undermine the judges’ technocratic expertise, and therefore, the Court's legitimacy.
While legitimacy stems from the Court’s process, it also comes from its decisions, which may give rise to challenge when the outcome ‘sharply conflicts with the basic notions of justice’.Footnote 44 Justice is therefore a typical yardstick by which to assess judicial outcomes. A complex notion, justice can denote ‘restoration of a “proper balance”, fit[ting] with the idea of the “golden mean”, the desirable middle between two extremes’.Footnote 45 In Part II of this book, many scenarios are examined that can be characterised as unjust from the perspective of social idealism, which aspires for more balance between states and individuals. Certain outcomes in territorial or maritime disputes, for instance, may cause disruption to peoples’ lives, and in environmental disputes may exclude significant human factors.
Therefore, the absence of individuals in the Court’s process – compromising technocratic expertise, fairness, and/or democracy – may impact the Court’s legitimacy. Similarly, the lack of consideration for individuals in the Court’s judgments may be characterised as unjust and therefore compromise the Court’s legitimacy.
One further point should be raised with respect to legitimacy. Generally, the Court strives to maintain its legitimacy by ensuring that it meets the expectations of states. However, it may unknowingly be compromising its long-term legitimacy as a key player in the wider context of the international legal order, characterised by two relevant factors. First, the order is increasingly characterised by its variety of actors. Indeed, the capacity of individuals in international law has impressively evolved over the course of the twentieth century, and participation of a variety of actors is now a basic feature of modern international relations.Footnote 46 The Court’s limitations ratione personae are therefore considered to be ‘disconnected’ from such developments.Footnote 47 This is not helped by the perception that it is ‘isolated physically, symbolically, and systematically from the rest of international legal and social reality’.Footnote 48 The second characterisation impacting the Court’s legitimacy is its application of international law, which has the purpose, inter alia, of ‘giving a voice to those who have been excluded from powerful positions and are regularly treated as the objects of other peoples’ policies’.Footnote 49 The Court often finds itself at the receiving end of such an objective: many cases examined in this book involve a community, population, or individual striving to overcome imposition by a more powerful force and vindicate their rights. A failure to engage with this to some degree reflects a failure to acknowledge the reality in which international law operates: that is, not in an intellectual vacuum.Footnote 50
In sum, this book proposes a strengthening of the relationship between the Court and individuals for the Court’s effectiveness and legitimacy. Both, from the perspective of social idealism, require greater acknowledgement of the relevant stakeholders.
The choice to focus on the Court is explained by my interests in the tensions between the nature of cases to come before its docket – many of which yield stakes for individuals – and the Court’s often conservative or formal approach, deferential to state sovereignty.Footnote 51 This choice is also grounded in its prominence in the international legal order, historical longevity, and general subject matter jurisdiction, which results in the ‘cast[ing of] a tremendous shadow on the development of international law’.Footnote 52
I.2 Method
The method adopted in this book is, as indicated in its title, the analysis of the law and practice of the Court. ‘Law’ refers to the procedural law of the Court, which is determined by three key sources. The first is the Statute of the Court, which expounds the broad principles related to it featured in Articles 92–96 of the UN Charter, to which the Statute is annexed. The second is the Rules of the Court, which supplement the broad provisions of the Statute on technical procedure and practical details. The third is the Practice Directions, which supplement the Rules of the Court by specifying the Court’s preferred practice in certain procedural matters. These three sources carve out the procedural infrastructure of the Court.Footnote 53 ‘Practice’, on the other hand, refers to over 100 years of case law, in the form of judgments on contentious cases and advisory opinions, emitted by the Court and its predecessor, across an array of disciplines in international law.
This book therefore adopts a doctrinal methodology, which is best suited to meet its objectives. It presents its findings de lege lata (the law which is presently in force or the law as it is). In advancing its argument that affected individuals should and can be further integrated into the Court’s procedure and considered in its legal reasoning, it naturally incorporates reflections de lege ferenda (the law sought to be established, the law to be proposed, or the law as it ‘ought’ to be).
I.3 Scope and Structure
For the purpose of this book, an individual may be defined as a natural human person.Footnote 54 This study is not limited to cases involving a singular individual. While such scenarios are examined, it also explores contexts involving organised groups of individuals. Such collective structures include peoples: groups with a common destiny and a shared identity (racial, ethnic, linguistic, or other) as a result of a common heritage to which they are bound.Footnote 55 They also include local populations who only share a common land on which they live. They may also include a public: a collective of natural human persons who are not necessarily located in the same geographical space but connected in a ‘relationship of mutuality’ vis-à-vis a common concern.Footnote 56
What the individuals identified in this book all share is their interest in the decision and the decision-making process of the ICJ as they are affected or likely to be affected by it. This book identifies both directly and indirectly affected individuals in Parts I and II, respectively. This dichotomy can be loosely inferred by the Court’s practice. On this basis, this study is divided into two principal sections.
Part I focuses on the Court’s integration of individuals in its procedure, examining to what degree the Court’s procedural mechanisms are inclusive of such individuals. It first tackles the often-asked question of locus standi of individuals before the Court (Chapter 1). Next, it turns to situations equipped with their own procedural intricacies: the practice of diplomatic protection (Chapter 2), the involvement of individuals in advisory proceedings (Chapter 3), and the involvement of individuals in advisory proceedings regarding the review of the decisions of administrative tribunals (Chapter 4). Part I is concluded with an assessment of the degree to which individuals are integrated in the procedural law of the Court and reflections on the reasons (Chapter 5).
Part I therefore frames directly affected individuals as those around whom the dispute revolves – in other words, the crux of the matter before the Court pertains directly to the individual’s rights. Diplomatic protection proceedings are instigated by an injured individual and concern the violation of the latter’s rights. Many advisory requests are made in the interest of a population or wider public of individuals beyond states. Advisory requests made by certain UN administrative tribunals concerned the rights of UN staff members whose labour rights were violated. The fundamental questions for the Court to respond to are directly linked to peoples’ experiences, and such people would directly open a contentious dispute if they had legal standing.
Part II analyses the Court’s consideration of individuals in its jurisprudence, assessing to what degree individuals who are affected by the outcome of an inter-state litigation are factored into the Court’s legal reasoning. It examines various areas of international law: maritime delimitation disputes (Chapter 6), territorial disputes (Chapter 7), environmental disputes (Chapter 8), and disputes involving the interpretation of international treaties and the identification of customary international law (Chapter 9). Part II offers summative reflections on the underlying reasons for its findings (Chapter 10). It focuses on indirectly affected individuals: the crux of the matter brought before the Court does not pertain directly to the individuals’ rights but to other matters. Yet, the decisions made on such matters will still affect the individuals – for instance, their well-being, freedoms, identity, nationality, or livelihoods. The individuals identified in Part II therefore have an interest in the decision and the decision-making process. Chapter 11 concludes the book.
